Citation Nr: 1329972 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-29 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right leg disorder, to include as secondary to the service-connected lumbosacral strain with limitation of motion. 2. Entitlement to service connection for a left leg disorder, to include as secondary to the service-connected lumbosacral strain with limitation of motion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from December 1995 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, that denied the claims of service connection for right and left leg disorders, each to include as secondary to the service-connected lumbosacral strain. This matter was previously before the Board in March 2010, March 2012, and May 2013 wherein was remanded for additional development. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals that VA outpatient treatment records dated through May 2012 (to include those electronically available through the Compensation and Pension Records Interchange (CAPRI)) have been obtained. The August 2013 Supplemental Statement of the Case reflects consideration of these records. The remaining records in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The record does not show a current diagnosis of a right leg disorder other than radiculopathy of the right lower extremity due to lumbosacral strain, which is already service connected. 2. The record does not show a current diagnosis of a right leg disorder other than radiculopathy of the right lower extremity due to lumbosacral strain, which is already service connected. CONCLUSIONS OF LAW 1. The Veteran does not have a right leg disorder that is the result of disease or injury incurred in or aggravated by active service, and is not proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013); 38 C.F.R. § 3.310 (2006). 2. The Veteran does not have a leg disorder that is the result of disease or injury incurred in or aggravated by active service, and is not proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case or Supplemental Statement of the Case. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in October 2003 from the RO to the Veteran which was issued prior to the RO decision in March 2004. Additional letters were issued in April 2010, April 2012, and May 2013. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Board further observes that this case was most recently remanded in May 2013 in order to afford the Veteran an additional VA examination. Thereafter, the Veteran was afforded a VA examination in May 2013. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. The Veteran has been afforded VA examinations on the issues decided herein which are deemed adequate. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the appeal. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran's service treatment records are negative for any complaints of or treatment for a bilateral leg disorder. By a rating action in January 2000, the RO granted service connection for lumbosacral strain; a 10 percent disability was assigned, effective December 12, 1998. Medical evidence of record, including VA as well as private treatment reports, dated from April 2000 through November 2002, reflect treatment primarily for chronic low back pain. Among these records is a statement from Dr. Jacqueline Crenshaw, dated in May 2002, indicating that the Veteran was seen for evaluation of complaints of low back pain accompanied by right leg pain with numbness to the knee. It was noted that the Veteran felt that the problem with his low back began with an accident which occurred in 1997 when he was lifting a hot water heater. It was noted that chiropractic analysis revealed a rotation of the pelvis; this rotation can enhance the natural stenosis present in the spinal canal causing low back pain and leg pain, and the antalgic present in the Veteran's X-rays. The Veteran's claim for service connection for a bilateral leg disorder (VA Form 21-4138) was received in October 2003. In that statement, the Veteran maintained that, over the years, his back disorder had caused him to develop secondary disabilities, including bilateral leg pain. Submitted in support of the claim were VA progress notes dated from October 2002 to September 2003. These records do not reflect any complaints of or treatment for leg pain. Private outpatient treatment record received dated from December 2003 to December 2004 do not reflect any complaints of or treatment for a bilateral leg disorder. On the occasion of a VA examination in April 2006, the Veteran reported low back pain, which he described as sharp to dull pain to his right lower back with achiness involving his legs. He noted that the pain was increased by standing or walking and relieved by pain medication and warm shower. He denied any other trauma. The impression was chronic back pain, likely lumbar radiculopathy, and generalized spasticity. Received in April 2006 were treatment records from Dr. Michael Dole, dated from October 2005 to January 2006. Among these records was the report of an electromyograph (EMG) evaluation, dated in October 2005, indicating that the Veteran was seen for complaints of continued back pain going into both legs. The Veteran reported aching back pain going into both legs, with numbness and dysesthesias along his posterior thigh and numbness into both feet. Clinical impression was low back pain with radiation into both lower extremities; no EMG evidence of radiculopathy; and dysesthesias in both feet, with equivocal evidence of neuropathy. Received in May 2007 were VA progress notes dated from April 2006 to May 2007. These records do not reflect any complaints of or treatment for a bilateral leg disorder. Received in April 2010 were VA progress notes dated from February 2008 to March 2010. During a clinical visit in January 2010, the Veteran stated that he was having pain in his hip joints, knees and ankle joints. The assessment was generalized joint pain and back pain. The Veteran was afforded a VA examination in April 2010. At that time, the Veteran reported bilateral leg pain that started in 2003; he noted that the pain began abruptly, with no injury or trauma. The Veteran stated that it was his belief that the leg pain was due to chronic back problems which began during military service. Following physical examination, the diagnosis was bilateral leg strain. The examiner stated that the bilateral leg strain was not related to the Veteran's period of active service; he also stated that the chronic bilateral leg pain was less likely as not permanently aggravated by lumbosacral strain with limited motion, muscle strain of the right shoulder, and radiculopathy of the left lower extremity. The examiner stated that the Veteran stated that none of his chronic disabilities, including the leg pain, began during his period of active service but began abruptly in 2003; therefore, it was the examiner's opinion that none of the disabilities were related to active service. The Veteran also reported that the leg pain began abruptly in 2006 and had worsened; the examiner stated that X-rays taken from that date and those from 2004 and 2005 did not demonstrate any deterioration in the claimed disability. Received in June 2010 were treatment notes from Dr. Stephen P. Katz, dated from March 2010 to June 2010. These records show that the Veteran received clinical attention for chronic low back pain. These records do not reflect any complaints of or treatment for leg pain. Received in May 2011 was a statement from D. L., indicating that he served in the same platoon with the Veteran in 1997 and 1998; during the time that he was platoon sergeant, he observed the Veteran complain of leg pain on several occasions. D. L. stated that he was in charge of the mission that was assigned when the Veteran was hurt; he was injured while lifting hot water heaters. After his injury, he often observed the Veteran having complications of pain in his shoulder, back, and legs. D. L. stated that he could certain confirm that the Veteran did in fact suffer from leg pain while in service. Following a review of the claims file, in April 2012, a VA examiner stated that the Veteran's degenerative joint disease of the lumbar spine with right lower extremity radiculopathy represented progression of the Veteran's service-connected low back condition. It was observed that the Veteran was already service-connected for left lower leg radiculopathy. A review of the Veteran's virtual VA records reflects that additional records were added to the file, dated from April 2011 to May 2012. These records show that the Veteran received ongoing evaluation and treatment for chronic low back pain with radiation of pain into the lower extremities. Following a VA examination in May 2013, the VA examiner stated that the Veteran was service-connected for radiculopathy of the left lower extremity, which was a chronic disability of the left lower extremity that was caused by the Veteran's lumbosacral strain. He stated, however, there was no other finding or diagnosis of chronic disability of the lower extremities that was caused or aggravated by the Veteran's service-connected lumbosacral strain. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The Veteran contends that he has a bilateral leg disorder that is the result of his active service. Alternatively, he asserts that he has a bilateral leg disorder that was caused or aggravated by his service-connected lumbosacral strain. Thus, he believes that service connection is warranted on either a direct or secondary basis. The threshold matter that must be addressed here (as with any claim seeking service connection, whether direct or secondary) is whether the Veteran has the disability for which service connection is sought. After review of the pertinent evidence of record, the Board finds that the competent evidence of record does not establish a current diagnosis of a bilateral leg disorder. Significantly, the service treatment records do not include any mention of, complaints of, treatment for, or diagnosis of a bilateral leg disorder. In addition, the record is devoid of any competent evidence indicating or suggesting that the Veteran has or has had a diagnosed bilateral leg disorder. In fact, following the May 2013 VA examination, the examiner observed that the Veteran is service-connected for radiculopathy of the left lower extremity, which is a chronic disability of the left lower extremity that was caused by the Veteran's lumbosacral strain. He stated, however, there is no other finding of diagnosis or chronic disability of the lower extremities that is caused or aggravated by the Veteran's service-connected lumbosacral strain. The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. The evidence reflects that the Veteran does not have a bilateral leg disorder other than radiculopathy of the lower extremities already service connected. In the absence of proof of current disability, the claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, the Board recognizes that on VA examination in April 2010, the Veteran was diagnosed with bilateral leg strain. In this regard, the Board finds that the VA examiner concluded that the bilateral leg strain was not related to the Veteran's active service and less likely as not permanently aggravated by his service-connected lumbosacral strain. This opinions is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Thus, service connection for a bilateral leg disorder is not warranted on either a direct or secondary basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board acknowledges the Veteran's belief that he has a bilateral leg disorder as a result of service. Lay testimony can be competent regarding features or symptoms of injury or disease when the features or symptoms are within his personal knowledge and observations. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). We also consider statements submitted by family and friends attesting to the fact that he suffers from a bilateral leg disorder, claimed to be related to service or to his back disorder. However, as lay persons without medical training, neither the Veteran nor the lay family members are qualified to determine whether the Veteran has a current medical ailment sufficient to qualify as a disability or whether that disability may be related to an event in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). The Board notes in any event that the probative value of any statement by the Veteran and a friend as to the presence of a current leg disorder is outweighed by that of the VA examiner who clearly has more training, education and experience in identifying disabilities of the lower extremities than the Veteran. Given the medical evidence against the claim, for the Board to conclude that the Veteran has a right and left leg disorder that is manifested as a result of service or a service-connected disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2013); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The benefit-of-the-doubt doctrine is not applicable in this case because the preponderance of the evidence is against the claim of service connection. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right leg disorder, to include as secondary to service-connected lumbosacral strain, is denied. Service connection for a left leg disorder, to include as secondary to service-connected lumbosacral strain, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs